perborean regions. Again, the Lieutenant Governor in point of practice, has always been a cypher, whether he opposed the Governor in Chief as General Hope did Lord Dorchester, or did nothing at all, as all General Hope's successors in office have done. The Lieutenant Governor thus withdrawn, his place in the Executive Council came to be occupied by the Chief Justice for the time being. I need not say, that by these means, this last mentioned public officer, came to be too intimately mixed up with the local politics of the Province, and there then came into his hands, a concentration of power not merely adverse to, but subversive of, all public freedom.

The manner in which the patronage of the Governor has been exercised has been highly injurious to the government. The power of the Governor ought to be controlled in some shape or other in the exercise of this patronage. It is not here as it is in England, where a ministry comes in and goes out; and the mischiefs of this colonial abuse are, therefore, perpetuated from governor to governor. The new governor is obliged to use the instruments which his predecessor has left him, and these, sometimes bad enough, selected perhaps by a governor, who with the best intentions in the world, has converted his patronage into an eleemosynary fund for decayed widows, and for men whose only claim to be provided for, is, that they cannot provide for themselves.

Another circumstance which has very materially affected the complexion of the colonial administration, is, that our governors ever since Sir Robert Shore Milne's administration, have been military men. No man entertains a higher respect for military men than I do; but who is there so stupid as not to know that military men, generally speaking, are altogether unequal to the discharge of civil duties of any kind, still less of duties of so delicate and important a character as those of Governor in Chief of British North America. Lord Brougham and Lord Tenterden are confessedly men of high talents; but what would be said if the command of the channel fleet were

given to one of these noblemen, and the other were requested to supply the place of Lord Hill as Commander in Chief of the Forces, or generalissimo of an Indian army to chastise the gold footed Emperor? Is there any difference between this and the appointment of a man who has passed the whole of his life in the camp, to civil command ?

The autocratic tendency has been from this cause much augmented; and at this moment the government of Lower Canada may be defined to be a mixed government composed of the two discordant elements of autocracy and democracy.

I cannot close this paper without making some observations upon an expression which provincial baseness has brought into general use, and which is calculated to convey very erro neous notions of the powers of governors to themselves and to others. We every day hear the governor called the King's Representative. Nothing is more inaccurate than this expression in the sense in which it is used.-Constitutionally, the King is the fountain of all office, honour and power; and each officer of the government deriving his authority from the king, represents the king in the exercise of his legal power. This is true as well of the highest as of the lowest officers-it is as true of a constable as it is of the Lord Chancellor of England. In no other sense can it be rightly applied to the Governor of a Colony. None of the particular attributes of sovereignty, under the constitutional law of England, are applicable to that officer. The King can do no wrong. Is that true of a provincial Governor? His powers are originally inherent and perpetual-that of a Governor is derivative, temporary and dependent upon the will of him who conferred it. Constitutionally, the King is answerable to God only for his The Governor is answerable to his Royal Master. The King is amenable to no human tribunal for the discretion which he exercises in displacing public officers. The Governor is answerable in the King's Courts at Westminster for the

acts.

140 FUNCTIONS AND DUTIES OF A GOVERNOR, &c.

suspension or removal of any subject of the King holding an office of emolument within the Colony.

That an expression such as this should have obtained currency, is of itself pregnant evidence of the servility of that class of the colonial society where it has long been and still continues to be in daily use.

* Masères Canadian Freeholder-Appendix No. 3, page 4.

141

NO. XIII.

ON THE THIRD REPORT OF THE COMMITTEE OF GRIEVANCES.

Ego nugas maximas omni mea comitate sum complexus, Nymphontem etiam Colophonium. CIC. AD QUINT. FRAT.

In all civilized countries the legislative and judicial powers, however variously regulated, are kept distinct and apart. For wrongs done to the person or the property of the subject, recourse must be had to the judicial authority, from which the proper remedy is to be obtained in the Civil Courts, and sometimes punishment in the Criminal Courts. In this manner the parties have the benefit of being able to refer to known established rules, whereby their rights are measured, and the forms of the proceedings for their preservation established; so, likewise, as a further protection for the subject and for maintaining unvaried the common standard or rule by which all his rights are to be measured, the constitution of Courts themselves carefully provided for, and a regular judicial hierarchy established to correct any of the errors to which human infirmity may give occasion, in the judgements of the Courts of original jurisdiction, which errors might otherwise affect the sincerity and integrity of the standard rule, and contaminate the body of the law.

In the report to which I am now to solicit attention, the committee has erected itself into a court of justice, and has

determined various questions actually pending in the Courts of the province, and in progress of trial and adjudication therein. It is quite true that the conclusions or judgments of the gentlemen composing the committee, are altogether nugatory, whether they be right or whether they be wrong. It is equally true, that these conclusions or judgments are of the most hasty and incorrect character, as I shall soon have an opportunity of shewing; but we are not thence to infer that these proceedings of the Committee are harmless; any interference by any body of men with the judicial power, an assumption of the slightest portion of that power by men not vested with it, is dangerous to true freedom; so too, the character of more than one individual not before the Committee is implicated by this report. Although there may be extraordinary circumstances in which such a power may be exercised, in which, in the progress of inquiry, such an effect may be produced without affording grounds of legitimate complaint, yet this is by no means a matter of course, as the Committee would seem to have thought it. "Reputation, indeed, is not only one of our perfect rights, but that which alone gives a value to all our other rights; the integrity of our honour and character, being one of the chief instruments of temporal prosperity and success."*

Before proceeding to the examination of the report, I will give it in the words of the Committee itself.

"Being required to examine into the divers allegations contained in the petition which has occasioned the present reference, your Committe have, in the first place, endeavoured to ascertain the rights which the petitioner is entitled to claim, as lessee under the Crown, of that part of the country known by the name of the King's Posts. They have found those rights clearly defined in the original lease granted in 1822, in favour of the late John Goudie, who in 1823 transferred two thirds of his right therein, to Mr. James M'Douall. (a) In the month of October of the following year, the lat

* Holt on Libel.

(a.) It is surprising that the committee did not perceive at this the threshold of their inquiry, that to enquire into the rights of individuals,